Legal Strategies for Prosecuting ISIS Crimes Against Women and LGBTIQ Persons

Professor Lisa Davis, CUNY School of Law, addresses this very complex issue. How can the International Community pursue justice? Full tittle: Reimagining Justice for Gender-Based Crimes at the Margins: New Legal Strategies for Prosecuting ISIS Crimes Against Women and LGBTIQ Persons.


UN Secretary-General Addresses High-level Event of LGBT Core Group. 2018

Abstract

ISIS forces have enforced strict gender regulations on social behavior for both women and men, torturing and killing those who do not conform to the militia’s rigid gender policies. Human rights advocates have documented brutal accounts of sexual violence, shootings, beheadings, stoning, and burnings of men, women and youth, including those who are, or are perceived as, lesbian, gay, bisexual, transgender, and queer (LGBTQ), simply for defying the militia’s narrowly defined gender roles. ISIS fighters have forced women into sexual slavery. They have killed women doctors who do not comply with rigid dress codes when they interfere with the performance of their medical duties. They have executed women for being politicians, journalists, or for serving in other professional jobs not deemed appropriate for their prescribed gender roles.


ISIS fighters beat men who are unable or unwilling to grow beards.8 They threw men accused of homosexual behavior off buildings to their death. ISIS issued death warrants to women accused of lesbian behavior. ISIS has killed youth because of their alternative forms of personal expression, including having stylish haircuts or wearing western clothing such as skinny jeans, labeling them as “faggots.” These killings and other violations are evidence of a systematic persecution of persons based on gender.


While the International Criminal Court (ICC) has prosecuted a range of sexual violence crimes, it has yet to convict crimes of gender-based persecution like those committed by ISIS as well as other armed actors. As the international community continues to grant broader recognition of individuals’ rights to be free from discrimination and violence on the basis of gender, including gender expressions based on sexual orientation and gender identity, the time is ripe for the ICC to act. At the same time, in Iraq, discussions are underway on how to proceed with the prosecutions of ISIS fighters that have been captured and are being held without charge under Iraq’s Administrative Law.

For this reason, on November 8, 2017, advocates filed a new submission — the first of its kind — to the International CriminalCourt (ICC), to advance protection of the rights of women and lesbian, gay, bisexual, transgender, intersex, and queer people. Filed jointly by three organizations — MADRE, the Human Rights and Gender Justice (HRGJ) Clinic of the City University of New York (CUNY) School of Law, and the Organization of Women’s Freedom in Iraq (OWFI) — the petition argues that the international community should prosecute ISIS fighters for crimes committed on the basis of gender, including discrimination based on sexual orientation and gender identity.


War-time abuses against people who are marginalized within their societies are rarely documented. As a result, such violations are excluded from human rights discourse and from justice processes. In effect, they are left out of history. For this reason, Iraqi activists, at great personal risk, have been documenting these crimes. Not only those committed by ISIS, but also by Iraqi government forces and other militias. They have preserved critical “information about perpetrators and their larger criminal networks.” Many of these same documenters have “also provide[d] safe passage and shelter to [people] at imminent risk of sexual slavery or death.”


This is the first time the world has seen this kind of robust documentation of crimes against women and LGBTIQ persons for transgressing gender norms during an armed conflict. The submission therefore offers a new opportunity to challenge this type of violence. Of course, knowledge of egregious crimes committed against women and perceived or actual LGBTIQ persons in armed conflict itself is not new. At the world’s first international criminal prosecutions in Nuremberg, Germany, rape and sexual slavery of women and torture of LGBTIQ persons were acknowledged but never prosecuted.

Keywords: sexual orientation, gender identity, LGBT, LGBTIQ, gender, women, Iraq, conflict, ISIS, ISIL, International law, international criminal court, human rights law, international human rights law, international criminal law, sexual violence, rape, genocide, gay, lesbian, Iraqi women


Introduction

After the Islamic State of Iraq and Syria (ISIS) (1) took control of large swaths of territory in Syria and Iraq, credible reports began emerging of militia forces enforcing strict gender regulations on social behavior for both women and men, torturing and killing those who do not conform to the militia’s rigid gender policies.(2) Human rights advocates have documented brutal accounts of sexual violence, shootings, beheadings, stoning, and burnings of men, women and youth, including those who are, or are perceived as, lesbian, gay, bisexual, transgender, and queer (LGBTQ),(3) simply for defying the militia’s narrowly defined gender roles.(4) ISIS fighters have forced women into sexual slavery.(5) They have killed women doctors who do not comply with rigid dress codes when they interfere with the performance of their medical duties.(6) They have executed women for being politicians, journalists, or for serving in other professional jobs(7) not deemed appropriate for their prescribed gender roles. ISIS fighters beat men who are unable or unwilling to grow beards.(8) They threw men accused of homosexual behavior off buildings to their death.(9) ISIS issued death warrants to women accused of lesbian behavior.(10) ISIS has killed youth because of their alternative forms of personal expression, including having stylish haircuts or wearing western clothing such as skinny jeans, labeling them as “faggots.”(11) These killings and other violations are evidence of a systematic persecution of persons based on gender.


While the International Criminal Court (ICC) has prosecuted a range of sexual violence crimes, it has yet to convict crimes of gender-based persecution like those committed by ISIS as well as other armed actors.(12) As the international community continues to grant broader recognition of individuals’ rights to be free from discrimination and violence on the basis of gender, including gender expressions based on sexual orientation and gender identity, the time is ripe for the ICC to act. At the same time, in Iraq, discussions are underway on how to proceed with the prosecutions of ISIS fighters that have been captured and are being held without charge under Iraq’s Administrative Law.


For this reason, on November 8, 2017, advocates filed a new submission—the first of its kind—to the International Criminal Court (ICC), to advance protection of the rights of women and lesbian, gay, bisexual, transgender, intersex, and queer(13) people. Filed jointly by three organizations—MADRE, the Human Rights and Gender Justice (HRGJ) Clinic of the City University of New York (CUNY) School of Law, and the Organization of Women’s Freedom in Iraq (OWFI)—and with help from the law firm Debevoise & Plimpton, the petition argues that the international community should prosecute ISIS fighters for crimes committed on the basis of gender, including discrimination based on sexual orientation and gender identity.(14)


War-time abuses against people who are marginalized within their societies are rarely documented. As a result, such violations are excluded from human rights discourse and from justice processes. In effect, they are left out of history. For this reason, Iraqi activists, at great personal risk, have been documenting these crimes. Not only those committed by ISIS, but also by Iraqi government forces and other militias.(15) They have preserved critical “information about perpetrators and their larger criminal networks.”(16) Many of these same documenters have “also provide[d] safe passage and shelter to [people] at imminent risk of sexual slavery or death.” (17)


This is the first time the world has seen this kind of robust documentation of crimes against women and LGBTIQ persons for transgressing gender norms during an armed conflict. The submission therefore offers a new opportunity to challenge this type of violence. Of course, knowledge of egregious crimes committed against women and perceived or actual LGBTIQ persons in armed conflict itself is not new. At the world’s first international criminal prosecutions in Nuremberg, Germany, rape and sexual slavery of women and torture of LGBTIQ persons were acknowledged but never prosecuted.(18)


In the 1990s, with the creation of the International Criminal Court, gender-based forms of violence started to gain recognition as violations of international criminal law.(19) At the time, women’s rights advocates rallied drafters of the Rome Statute, which governs the ICC, to abandon the “outrages upon personal dignity” language traditionally used to describe sexual violence.(20) They succeeded in broadening the category of sexual violence to include not only rape, but also sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other previously undefined forms of sexual violence.21 Advocates also succeeded in substituting the word “gender” for “sex” in the Rome Statute—an advance hailed as one of the most important safeguards for gender justice under international criminal law and a major achievement of global women’s movements in the 1990s.(22) Yet since then, the full understanding of “gender” under the Rome Statute has not been applied.


At the international level, efforts are being undertaken to hold ISIS fighters accountable. In 2011, the United Nations (U.N.) Security Council granted jurisdiction to the ICC to investigate and prosecute crimes committed by ISIS in Libya.(23) By 2015, the Permanent Mission of the United States and Chile to the United Nations convened the first Arria Formula to ever address LGBTIQ rights within the U.N. Security Council.(24) This meeting specifically addressed the situation under ISIS. A year later, the U.N. Commission of Inquiry on Syria concluded that “ISIS has [indeed] committed the crime of genocide as well as multiple crimes against humanity and war crimes against the Yazidis.” (25) Last fall, the Security Council asked the U.N. Secretary-General to establish an independent investigative team to support Iraq’s domestic efforts to hold ISIS accountable for its war crimes, crimes against humanity and genocide committed in Iraq.(26) Additionally, several European governments have initiated or concluded criminal proceedings against nationals who are accused of ISIS membership and criminal activity. In 2015, Europol reported that ninety-four percent of prosecutions for terrorist offences in Europe concluded with guilty verdicts—the majority of which concerned offences related to the conflicts in Syria and Iraq.(27)


What is missing, however, from these criminal justice initiatives is holistic accountability for gendered crimes committed by ISIS.


In response, in 2017, and with the support of U.N. Women, CUNY Law School convened a meeting with experts on LGBTIQ rights and international criminal law from around the world.(28) Together, they crafted the strategy for the petition to the ICC and for ensuring the safety and security of those associated with it, including Iraqi groups named in the petition. Activists also held a series of consultations with Iraqi women’s organizations in-country. For safety reasons, the decision was taken not to translate the submission into Arabic, and several contributing groups decided to leave their name off the official submission.


CUNY Law’s HRGJ Clinic, OWFI, and MADRE are seizing this pivotal moment in history to broaden the discourse on gender. Through their petition to the ICC, they seek to expand the understanding of discrimination, including where gender, sexual orientation, and gender identity intersect. The groups’ coordinated advocacy and movement-building strategy was explored in a symposium held at CUNY Law School the day before the petition was submitted, entitled, “Prosecuting ISIS Crimes against Women and LGBTIQ Persons” joined by ICC Chief Prosecutor Fatou Bensouda.(29) At the end of the event, the groups filed the official Article 15 Communication.


The success of this submission could change the landscape of international criminal law, both highlighting and redressing the longstanding targeting of civilians based on gender, sexual orientation, and gender identity in the context of war and conflict. Appropriate action by the International Criminal Court and the international community at large would set a new precedent for prosecuting gender-based crimes and create a new tool for human rights advocates worldwide.


This Article will argue that ISIS’s gender-based crimes should be viewed through the legal framing of the societal construct of gender. Evidence exists that ISIS committed systematic gender-based persecution constituting crimes against humanity and committed the war crime of torture based on gender discrimination. Its members should therefore be prosecuted for these gender-based crimes. Part I of this Article will begin with an exploration of why prosecutions of gender-based crimes are necessary for building both peace and a just society. Part II will provide an analysis of three forms of gender persecution as crimes against humanity committed by ISIS: gender roles, dress and behavior, which are manifested in their underlying crimes of rape, torture, and murder. Part III of this Article will discuss two provisions under the Rome Statute for prosecuting gender based crimes, specifically gender-based persecution as a crime against humanity and torture as a war crime based on gender discrimination. Part IV will discuss the interest of justice for prosecuting ISIS perpetrators who have committed gender-based crimes.

Keep reading and access the full article here.


Suggested Citation:

Davis, Lisa, Reimagining Justice for Gender-Based Crimes at the Margins: New Legal Strategies for Prosecuting Isis Crimes Against Women and LGBTIQ Persons (May 25, 2018). William & Mary Journal of Women and the Law, Vol. 24, No. 3, 2018. Available at SSRN: https://ssrn.com/abstract=3184815


Dr. Lisa Davis is an Associate Professor of Law and Co-Director of the Human Rights and Gender Justice Clinic (formerly named International Women's Human Rights Clinic). Professor Davis has written and reported extensively on international human rights and gender issues, including women's rights and LGBTIQ rights, with a focus on peace building and security issues in conflict and disaster settings. Lisa has testified before U.S. Congress, U.K. Parliament, the Inter-American Commission on Human Rights and various international human rights bodies. Lisa is also a member of the JRR-UN Women SGBV Justice Experts Roster. In 2016, Professor Davis was elected by their peers to deliver the civil society statement for the U.N. Security Council's open debate on the use of sexual violence in conflict situations.

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